West Virginia v. B. P. J. · ¶190

The solo dissent in Virginia raised similar objections to the Court’s application of heightened scrutiny. In Justice Scalia’s view, the majority in Virginia necessarily concluded that “VMI’s single-sex composition [was] unconstitutional because there exist[ed] several women (or, one would have to conclude under the Court’s reasoning, a single woman) willing and able to undertake VMI’s program.” 518 U. S., at 573. The dissent added, as the majority repeats here, that “[t]here is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.” Id., at 574; see ante, at 18–19 (pressing this exact argument). Once again, where these arguments failed before, today they succeed.

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